Opinion
No. 2827 Index No. 151512/23 Case No. 2023-04557
10-15-2024
Michael Campagna, Plaintiff-Respondent, v. New York City Police Department. et al., Defendants-Appellants.
Muriel Goode-Trufant, Acting Corporation Counsel, New York (Diana Lawless of counsel), for appellant. Law Offices of Alexander Schachtel, New York (Alexander Schachtel of counsel), for respondent.
Muriel Goode-Trufant, Acting Corporation Counsel, New York (Diana Lawless of counsel), for appellant.
Law Offices of Alexander Schachtel, New York (Alexander Schachtel of counsel), for respondent.
Before: Webber, J.P., Kapnick, Kennedy, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered on or about August 11, 2023, which granted plaintiff's motion for injunctive relief seeking immediate reinstatement to his position within the New York City Police Department (NYPD), and an award of full back pay and full credit for time missed towards pension eligibility, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff's employment as an auto mechanic with the NYPD was terminated in February 2022 after he refused to comply with the public employee vaccination mandate issued by the Health Commissioner of the City of New York. Plaintiff commenced this action against defendants the City of New York and the NYPD nearly one year later, alleging that he was wrongfully terminated, as the vaccine mandate was arbitrary, capricious, and unconstitutional.
The motion court improvidently granted plaintiff's motion for injunctive relief, as he failed to show that he was likely to succeed on the merits, that he would suffer an irreparable and imminent injury if the injunction were withheld, and that the equities balanced in his favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 [2005]; Doe v Axelrod, 73 N.Y.2d 748, 750 [1988]). Plaintiff cannot show irreparable harm, as he will be entitled to reinstatement and backpay if he prevails and his termination is annulled (see Mabry v Neighborhood Defender Serv., Inc., 88 A.D.3d 505, 506 [1st Dept 2011]).
Further, plaintiff cannot demonstrate the likelihood of success on the merits, as he failed to challenge the termination of his employment with the NYPD in a timely article 78 proceeding (see CPLR 7803[3]). Although he attempts to cast his action as a plenary action seeking monetary damages, the gravamen of his complaint sought to review the NYPD's decision to terminate his employment based on his noncompliance with the vaccine mandate (see Ugo-Alum v State Dept. of Motor Vehs., 211 A.D.3d 500, 501 [1st Dept 2022], lv denied 39 N.Y.3d 912 [2023]; Foster v City of New York, 157 A.D.2d 516, 518 [1st Dept 1990]). Plaintiff also fails to show that his constitutional challenges to the vaccine mandate or his discrimination claims will succeed in light of recent decisions issued by this Court and others (see Matter of Parks [Commissioner of Labor], 219 A.D.3d 1099 [3d Dept 2023], lv denied 41 N.Y.3d 910 [2024]; Garland v City of New York, 665 F.Supp.3d 295 [ED NY 2023], affd 2024 WL 445001, 2024 U.S. App LEXIS 2651 [2d Cir, Feb. 6, 2024, No. 23-663]; Matter of Bryan v Board of Educ. of the City Sch. Dist. of the City of N.Y., 222 A.D.3d 473 [1st Dept 2023]; Matter of Lee v City of New York, 221 A.D.3d 505, 506 [1st Dept 2023]). The balance of equities also does not tip in favor of plaintiff (see Winkler v Kingston Hous. Auth., 238 A.D.2d 711, 713 [3d Dept 1997]).